Popular consent was most evident in the procedure for choosing members of the House of Representatives. However, popular consent was limited by the requirements that senators be elected by their state legislatures and presidents by the Electoral College. Powers were separated among branches that then had to cooperate to effect change. Thus, separation of powers was joined with a system of checks and balances. This, it was hoped, would prevent tyranny, even by a popular majority.

Federalism came to mean a system in which both the national and state governments had independent authority. Allocating powers between these two levels of government and devising means to ensure that neither large nor small states would dominate the national government required the most delicate compromises at the Philadelphia convention. The Framers’ decision to protect the institution of slavery was another compromise, which presumably helped to ensure the Constitution’s ratification by states engaged in the slave trade.

In the drafting of the Constitution and the struggle for its ratification, the positions people took were determined by a variety of factors. In addition to their economic interests, these included profound differences of opinion over whether the state governments or the national government would be the best protector of personal liberty.

States participate actively both in determining national policy and in administering national programs. Moreover, they reserve to themselves or to localities within them important powers over such public services as schooling and law enforcement, and such important public decisions as land use. In a unitary system, these powers are exercised by the national government.

How one evaluates federalism depends in large part on the value one attaches to the competing criteria of equality and participation. Federalism means that citizens living in different parts of the country will be treated differently. This applies not only to spending programs (such as welfare), but also to legal systems (where civil rights may be differentially protected or criminal sentencing may vary). Yet federalism also means that there are more opportunities to participate in the decision making. It allows people to influence what is taught in the schools, and to decide where highways and other government projects will be built. Indeed, differences in public policy—that is, unequal treatment—are largely the result of wider participation in decision making. It is difficult, perhaps even impossible, to have more of one of these values without having less of the other.

1. Explain the notion of “higher law” by which the colonists felt they were entitled to certain “natural rights.” List these rights.

2. Compare the basis on which the colonists felt a government could be legitimate.

3. List and discuss the shortcomings of government under the Articles of Confederation.

4. Compare and contrast the Virginia and New Jersey plans, and show how they led to the “Great Compromise.”

5. Explain why separation of powers and federalism became key parts of the Constitution.

6. Explain why a bill of rights was not initially included in the Constitution and why it was added.

7. List and explain the two major types of constitutional reform advocated today, along with specific reform measures.

8. Explain the difference between federal and centralized systems of government, and give examples of each.

9. Show how competing political interests at the Constitutional Convention led to the adoption of a federal system that was not clearly defined.

10. Outline the ways in which national and state powers have been interpreted by the courts.

11. State the reasons why federal grants-in-aid to the states have been politically popular, and cite what have proven to be their pitfalls.

12. Distinguish between categorical grants and block grants.

13. Distinguish between mandates and conditions of aid with respect to federal grant programs to states and localities.

14. Discuss whether or to what extent federal grants to the states have created uniform national policies comparable to those of centralized governments.

15. Evaluate the effect of devolution on relationships between the national and state governments.

16. Assess its implications for citizens as taxpayers and as clients of government programs.

Over the last fifty years or so, Congress, especially the House, has evolved through three stages. The Congress is presently an uneasy combination of stages two and three.

During the first stage, which lasted from the end of World War I until the early 1960s, the House was dominated by powerful committee chairs who controlled the agenda, decided which members would get what services for their constituents, and tended to follow the leadership of the Speaker. Newer members were expected to be seen but not heard; power and prominence came only after a long apprenticeship. Congressional staffs were small, and so members dealt with each other face to face. In dealing with other members, it helped to have a southern accent: Half of all committee chairs, in both the House and the Senate, were from the South. Not many laws were passed over their objections.

The second stage emerged in the early 1970s, in part as the result of trends already under way and in part as the result of changes in procedures and organization brought about by younger, especially northern, members. (As an example of continuing trends, consider the steady growth in the number of staffers assigned to each member.) Dissatisfied with southern resistance to civil rights bills and emboldened by a sharp increase in the number of liberals who had been elected in the Johnson landslide of 1964, the House Democratic caucus adopted rules that allowed the caucus to do the following:

• select committee chairs without regard to seniority;

• increase the number and staffs of subcommittees;

• authorize individual committee members (instead of just the committee chair) to choose the subcommittee chairs;

•  ended the ability of chairs to refuse to call meetings; and

• made it much harder to close meetings to the public.

Also, the installation of electronic voting made it easier to require recorded votes, and so there was a sharp rise in the number of times each member had to go on record. The Rules Committee was instructed to issue more rules that would allow floor amendments.

At the same time, the number of southern Democrats in leadership positions began to decline, while the conservativism of the remaining ones began to lessen. Moreover, northern and southern Democrats began to vote together a bit more frequently, though the conservative Boll Weevils remained a significant—and often swing—group.

These changes created a House ideally suited to serve the reelection needs of its members. Each representative could be an individual political entrepreneur, seeking publicity, claiming credit, introducing bills, holding subcommittee hearings, and assigning staffers to work on constituents’ problems. There was no need to defer to powerful party leaders or committee chairs. But because representatives in each party were becoming more ideologically similar, there was a rise in party voting. Congress became a career attractive to women and men skilled in these techniques. Their skills as members were manifest in the growth of the sophomore surge, the increase in their winning percentage during their first re-election campaign.

Even junior members could now make their mark on legislation. In the House, more floor amendments were offered and passed; in the Senate, filibusters became more commonplace. Owing to multiple referrals and overlapping subcommittee jurisdictions, more members could participate in writing bills and overseeing government agencies.

Lurking within the changes that defined the second stage were others, less noticed at the time, that created the beginnings of a new phase. This third stage was an effort in the House to strengthen and centralize party leadership. The Speaker acquired the power to appoint a majority of the Rules Committee members. That body, worried by the flood of floor amendments, began issuing more restrictive rules. By the mid-1980s, this had reached the point where Republicans were complaining that they were being gagged. The Speaker also got control of the Democratic Steering and Policy Committee (which assigns new members to committees) and was given the power to refer bills to several committees simultaneously.

These opportunities for becoming a powerful Speaker were not noticed while Tip O’Neill (D, Massachusetts) held that post. However, Jim Wright (D, Texas), O’Neill’s successor, began to make full use of these powers shortly after he entered office. Perhaps if he had not stumbled over his ethical problems, Wright might have succeeded in becoming the policy leader of the House, setting the agenda and getting much of it adopted. The replacement of Wright by Tom Foley (D, Washington) signaled a return to a more accomodationist leadership style.

The pendulum continued to swing between different leadership styles in the latter half of the 1990s. Foley’s replacement, Republican Newt Gingrich (Georgia), was a more assertive policy leader. The first sitting Speaker to be reprimanded by the House for ethics violations, Gingrich resigned from office after the 1998 elections. He was succeeded by a more moderate speaker, J. Dennis Hastert (R, Illinois). The evolution of the House remains an incomplete story. It is not yet clear whether it will remain in stage two or find some way of moving decisively into stage three. For now, it has elements of both. Meanwhile, the Senate remains as individualistic and as decentralized as ever—a place where it has always been difficult to exercise strong leadership.

Congress is a collection of individual representatives from states and districts who play no role in choosing the president. They are therefore free to serve the interests of their constituents, their personal political views, and (to a limited extent) the demands of congressional leaders. In serving those interests, members of necessity rely on investigating, negotiating, and compromise, all of which may annoy voters who want Congress to be “decisive.” The unpopularity of Congress is made worse by the recent tendency of its members to become ideologically more polarized.

One of the most important changes in the profile of Congressional members is the increased ability of incumbents to get re-elected. This reflects the growth of constituent service, name recognition, and the weakening of party loyalties among voters.

Though its members may complain that Congress is collectively weak, to any visitor from abroad it seems extraordinarily powerful. Congress has always been jealous of its constitutional authority and independence. Three compelling events led to Congress reasserting its authority. These were the war in Vietnam, which became progressively more unpopular; the Watergate scandals, which revealed a White House illegally influencing the electoral process; and the continuance of divided government, with one party in control of the presidency and another in control of Congress.

In 1973, Congress passed the War Powers Act over a presidential veto, giving it a greater voice in the use of American forces abroad. The following year, it passed the Congressional Budget and Impoundment Control Act, which denied the president the right to refuse to spend money appropriated by Congress. This act gave Congress a greater role in the budget process. Congress also passed laws to provide a legislative veto over presidential actions, especially with respect to the sale of arms abroad. Not all these steps have withstood the tests of time or of Supreme Court review, but taken together they indicate a resurgence of congressional authority. They also helped set the stage for sharper conflicts between Congress and the presidency.

A president, chosen by the people and with powers derived from a written constitution, has less power than does a prime minister, even though the latter depends on the support of her or his party in parliament. The separation of powers between the executive and legislative branches, the distinguishing feature of the political system in the United States, means that the president must compete with Congress in setting policy and even in managing executive agencies.

Presidential power, though still sharply limited, has grown from its constitutional origins as a result of congressional delegation, the increased importance of foreign affairs, and public expectations. But while the presidential office has more power today, the president also faces higher expectations. As a result, presidential effectiveness depends not on any general grant of authority but on the nature of the issues to be confronted and the support gained from informal sources of power. Public opinion and congressional support are extremely important. As a political scientist noted so many years ago, the president’s primary power is often the power to persuade.

Though the president seemingly controls a vast executive branch apparatus, only a small proportion of executive branch personnel are presidential appointees or nominees. Even these may not be under presidential control. Moreover, public support, high at the beginning of any new presidency, usually declines as the term proceeds. Consequently, each president must conserve power (and energy and time), concentrating these scarce resources to deal with a few matters of major importance. Virtually every president since Franklin D. Roosevelt has tried to gain better control of the executive branch—by reorganizing, by appointing White House aides, by creating specialized staff agencies—but no president has been satisfied with the results.

In dealing with Congress, the president may be able to rely somewhat on party loyalty. Presidents whose party controls Congress tend to have more of their proposals approved. But such loyalty is insufficient. Every president must also cajole, award favors, and threaten vetoes to influence legislation. Few presidents can count on a honeymoon. Most presidents discover that their plans are at the mercy of unexpected crises.An independent judiciary with the power of judicial review—the power to decide the constitutionality of acts of Congress, the executive branch, and state governments—can be a potent political force. The judicial branch of the United States government has developed its power from the earliest days of the nation, when Marshall and Taney put the Supreme Court at the center of the most important issues of the time.

From 1787 to 1865, the Supreme Court focused on the establishment of national supremacy. From 1865 to 1937, it struggled with defining the scope of the government’s power over the economy. In the present era, it has deliberated about personal liberties.

It became easier for citizens and groups to gain access to the federal courts in the mid- to late twentieth century. This is the result of judges’ willingness to consider class action suits and amicus curiae briefs and to allow fee shifting. The lobbying efforts of interest groups also had a powerful effect. At the same time, the scope of the courts’ political influence has increasingly widened as various groups and interests have acquired access to the courts, as the judges have developed a more activist stance, and as Congress has passed more laws containing vague or equivocal language. Still, the Supreme Court controls its own workload and grants certiorari to a very small percentage of appellate cases. As a result, although the Supreme Court is the pinnacle of the federal judiciary, most decisions are made by the twelve circuit courts of appeals and the ninety-four federal district courts.

1. Explain the differences between a congress and a parliament and delineate the role that the Framers expected the United States Congress to play.

2. Pinpoint the significant eras in the evolution of Congress.

3. Describe the characteristics of members of Congress and outline the process for electing members of Congress.

4. Identify the functions that party affiliation plays in the organization of Congress.

5. Describe the formal process by which a bill becomes a law.

6. Identify the factors that help to explain why a member of Congress votes as he or she does.

7. Explain the differences between the positions of president and prime minister. 

8. Discuss the approach taken by the Founders in regard to executive power.

9. Sketch the evolution of the presidency from 1789 to the present.

10. List and describe the various offices that make up the executive branch.

11. Review discussions of presidential character, and explain how these relate to the achievements in office of various presidents.

12. Enumerate and discuss the various facets—formal and informal—of presidential power.

13. Explain what judicial review is and trace its origins.

14. List and comment on the three eras of varying Supreme Court influences on national policy.

15. Explain what is meant by a dual court system and describe its effects on how cases are processed, decided, and appealed.

16. List the various steps that cases go through to reach the Supreme Court and explain the considerations involved at each step.

17. Discuss the dimensions of power exercised today by the Supreme Court and the opposing viewpoints on an activist Supreme Court.

Civil liberties are foundational to political beliefs and political culture in the United States. Among the most important protections are those in the First Amendment: What is “speech”? How much of it should be free? How far can the state go in aiding religion? How do we strike a balance between national security and personal expression? The zigzag course followed by the courts in judging these matters has, on balance, tended to enlarge freedom of expression.

Also important has been the struggle to strike a balance between the right of society to protect itself from criminals and the right of all people to be free from unreasonable searches and coerced confessions. As with free speech cases, the courts have generally broadened the rights, this time at some expense to the police. In more recent years, though, the Supreme Court has qualified some of its exclusionary rule protections.

The resolution of these issues by the courts is political in the sense that there are competing opinions about what is right or desirable. In this competition of ideas and values, federal judges, though not elected, are often sensitive to strong currents of popular opinion.  When no strong national mood is discernible, the opinions of elites influence judicial thinking.

At the same time, courts resolve political conflicts in a manner that differs in three important respects from the resolution of conflicts by legislators and executives. First, the relative ease with which one can enter a court facilitates challenges to accepted standards. An unpopular political or religious group may have little or no access to a legislature, but it will have substantial access to the courts. Second, judges often settle controversies about rights not simply by deciding the case at hand but by formulating a general rule to cover similar cases elsewhere. This means that the law tends to become more consistent and better known, but the rules may also be inappropriately applied. A definition of “obscenity” or “fighting words” may suit one situation, but be inadequate in another. Third, judges interpret the Constitution, whereas legislatures often consult popular preferences or personal convictions. Still, though their own beliefs influence how judges read the Constitution, its language constrains almost all of their decisions.

Through action in the courts and in the Congress, the African American civil rights movement profoundly changed the nature of African Americans’ political participation. In particular, southern African Americans entered the political system, establishing an effective array of interest groups. Another decisive move was to mobilize northern opinion on behalf of this civil rights movement. Northerners initially viewed civil rights as an unfair contest between southern whites and southern African Americans; that perception changed when court rulings and legislative decisions applied to the north as well as the south. Then, there was northern opposition to court-ordered busing and affirmative action programs.

By the time this northern reaction emerged, though, the legal and political system had undergone significant change. It was difficult, if not impossible, to limit the application of civil rights laws to the south or to use legislative means to alter federal court decisions. Courts can accomplish little without strong political allies, as revealed by the massive resistance to the early school desegregation decisions. However, they can accomplish a great deal, even in the face of adverse public opinion, when they have organized allies, as was seen in their ability to withstand anti-busing efforts.

The women’s movement has somewhat paralleled the organizational and tactical aspects of the African American civil rights movement. There was a significant difference, however. The women’s movement sought to repeal or reverse laws and court rulings that, sometimes, were allegedly designed to protect (rather than to subjugate) them. The conflict between protection and liberty was sufficiently strong that it defeated efforts to ratify the Equal Rights Amendment.

Abortion and affirmative action are among the most divisive civil rights issues in United States politics. From 1973 to 1989, the Supreme Court seemed committed to giving constitutional protection to all abortions within the first trimester, with some regulation allowed thereafter. Since 1989, however, the Court has approved various state restrictions on all abortions.

There has been a similar shift in the Court’s view of affirmative action. Though it still approves some quota plans, it now insists that they pass strict scrutiny. This has the effect of ensuring that quotas are instituted only to correct a proven history of discrimination, that they place the burden of proof on the party alleging discrimination, and that they be limited to hirings and not extended to layoffs. Congress has modified some of these rulings through legislation.

The gay rights movement has proceeded along a rather different course than the struggle for African American civil rights or the women’s movement. The gay rights movement has largely proceeded on a state-by-state basis, with mixed results. States may not ban same-sex sexual relations, but they do not have to recognize gay marriages conducted in other states. Just as the country is divided on whether gay men and women should have the same rights as their heterosexual counterparts, so policy is divided as well.

OBJECTIVES

1. Discuss the relationship of the Bill of Rights to the concept of majority rule, and give examples of tension between majority rule and minority rights.

2. Explain how the civil liberties may at times be a matter of majoritarian politics and offer several examples.

3. Explain how the structure of the federal system affects the application of the Bill of Rights.

4. Describe how the Supreme Court has used the Fourteenth Amendment to expand coverage in the federal system.

5. Discuss changing conceptions of the due process clause of the Fourteenth Amendment.

6. List the categories under which the Supreme Court may classify “speech.”

7. Explain the distinction between “protected” and “unprotected” speech and name the various forms of expression that are not protected under the First Amendment.

8. Describe the test used by the Court to decide the circumstances under which freedom of expression may be qualified.

9. State what the Supreme Court decided in Miranda v. Arizona, and explain why that case illustrates how the Court operates in most such due process cases.

10. Contrast the experience of economic interest groups with that of African American groups in obtaining satisfaction for their interests from the government.

11. Indicate why in most circumstances the African American civil rights movement involved interest group rather than client politics.

12. Describe the strategies used by African American leaders and explain why the civil rights movement has become more conventional.

13. Summarize the legal struggles of African Americans to secure rights under the Fourteenth Amendment, and indicate how the Court construed that amendment in the civil rights cases.

14. Discuss the NAACP strategy of litigation, and indicate why it was suited to the political circumstances.

15. Summarize the rulings in Brown v. Board of Education and compare them with those in Plessy v. Ferguson.

16. Discuss the rationale used by the Supreme Court in ordering busing to achieve desegregation.

17. Explain the apparent inconsistency between Brown and Charlotte-Mecklenburg.

18. Indicate why these decisions are not inconsistent and explain why the courts chose busing as an equitable remedy to de jure segregation.

19. Trace the campaign launched by African Americans for civil rights laws.

20. Discuss the conflict between the agenda-setting and the coalition-building aspects of the movement.

21. Demonstrate how civil rights advocates overcame resistance in Congress.

22. Describe the differences between the African American civil rights movement and the women’s movement.

23. Indicate the various standards used by the courts in interpreting the Fourteenth Amendment, and explain how these standards differ depending on whether African Americans or women are involved.

24. Explain why the Equal Rights Amendment was not ratified, despite strong congressional and popular support.

25. Discuss the changing agenda of the women’s movement.

26. Explain what is meant by “affirmative action,” and discuss how the ideals of equality of opportunity and equality of result play roles in the debate surrounding affirmative action.

27. What is meant by “gay rights”? 

28. Discuss the role of the states in the gay rights movement. 

29. Explain the difference between gay marriage and civil unions.